The dust has settled on another Ontario Bencher election, but it seems that most lawyers in Ontario barely noticed.

Only 34% of eligible voters exercised their franchise in the easiest, most convenient Bencher election in history; log into the website, then click on candidate names – done in 90 seconds.

Even so, 66 percent of voters thumbed their noses at the entire process – they couldn’t be bothered to vote for even one candidate.

To anyone paying attention, the message is clear:

The vast majority of Ontario lawyers don’t care who is elected as a Bencher.

And the vast majority of lawyers have been sending this same message for decades.

In 2011, 37% of eligible voters voted, causing some to rejoice that the steadily declining voter turn-out was finally ticking upward; it seemed that voter turnout had hit rock bottom in 2007 at 34.5% and was now bouncing happily upwards.

However, it seems 2011 was merely an aberration, and the steady decline in voter interest continues.

The charts at the end of this post were prepared from data found in the Law Society of Upper Canada’s 2011 Election Results and Voter Turn-out Statistics. The 2015 numbers are estimated and will be verified by LSUC in June, 2015.

Given this evidence, it’s not a stretch to conclude that the vast majority of lawyers in Ontario no longer care about self-regulation.

If they did, wouldn’t they vote for those who regulate and discipline them?

How else do you explain such consistent apathy?

But even if we’re not willing to go that far, it’s clear that the vast majority of lawyers are comfortable allowing someone other than themselves to select Benchers.

So why not just have the Attorney General appoint lawyers as Benchers?

That would instantly create the diversity that so many Benchers claim to be in favour of.

Many voters have suggested that the Bencher voting was difficult because there were too many candidates for too many positions – all the more reason to move to a smaller, appointed Convocation.

Isn’t it time that the Law Society listened to the message being sent from the majority of lawyers in this province?

Comments

Here! Here! But why stop with the Bencher election? Voter apathy is everywhere. We should have the Governor General appoint our MPs, since the people are apathetic about self-governance. We should have the Lieutenant Governors appoint our MLAs. Shouldn’t that give our provincial legislative assemblies the diversity we claim to want? Why not have the premier appoint our city and town counsels, that would keep out corruption and improve our infrastructure.

Neither emboldened conclusion follows from a low voter turnout. Low turn-out might suggest that non-voters don’t care about who is elected a bencher from among the available candidates. This is different from not caring who is a bencher, because the candidates have many things in common, eg they are all lawyers sufficiently involved to run. It is even more clearly different from not caring about self-regulation, since any resulting slate is still a self-regulation. Do people take low turn-outs in general elections to imply that probably 40% of the population would be okay with dictatorship?

Another explanation is that low turn-out suggests that non-voters who do care feel that their vote will not make a difference. This could follow from, as above, a recognition that most candidates are mostly the same, or that a few unusual candidates will not have much effect on the decisions of the body as a whole. For such voters, non-voting is not about apathy at all. Such voters might include all those lawyers who simply want LSUC out of their hair as much as possible, who have faith in self-regulation’s famous inertia.

All this is compounded by the complexity of the election process. The suggestion that voting takes ninety seconds is absurd. I have spent ninety seconds archiving candidates’ campaign e-letters. An informed selection would involve, to start, a review of the 100-page document containing candidates’ statements. I should hope that most lawyers have the good sense to avoid voting if they only have ninety seconds to do it. Lawyers who want good benchers chosen by lawyers can specialise — by leaving the voting to those with the time and inclination to inform themselves.

The author is of course motivated by his desire for substantial change in the profession (ABS). I too would like to see great changes in regulation and I find benchers’ inertia on many points frustrating. But low voter turn-out is likely evidence that many lawyers don’t want that change — a far cry from an endorsement of a new regulation structure.

I would agree with you if 28 years of evidence didn’t show that voter apathy has grown dramatically. Given this strong trend, it’s not unreasonable to conclude that lawyers truly don’t care who becomes a bencher.

And the actual voting process does take only 90 seconds.

It seems odd to me that one would review candidate material and vote all at the same time.

Regular people don’t do that in government elections.

They arrive at the polling station with the name of the person they wish to vote for.

They don’t arrive at the polling station, review candidate material, then vote.

So why would lawyers do that for Bencher elections?

Lawyers in this province had ample time to review candidate materials in the weeks before the election (starting March 25 to be exact) and then during the 17 days of actual voting.

It’s true that I believe that the profession will benefit from becoming modern, as will LSUC.

The current way of selecting Benchers is antiquated and has been rejected by 66% of lawyers – and is not consistent with good governance for boards of directors.

Good governance results in better decision-making in the public interest.

“They arrive at the polling station with the name of the person they wish to vote for.” Is it not more accurate that voters arrive at the polling station with the name of the “political party” they wish to vote for or against. Perhaps, as you say: “[g]ood governance results in better decision-making in the public interest” bencher elections should be tied to provincial elections and include the public whose interest it is that at stake in the voting process. Just a thought.

1. The “strength” of the gradual decrease in turn-out over time is not evidence of whether it is reflective of the apathies in question. If my explanations of low turn-out are correct rather than or together with yours, then decreasing turn-out could just as well be because, eg, more lawyers are okay with any of the candidates or more lawyers feel their vote is irrelevant. You are citing the same “evidence” I was already addressing, coupled with a bare assertion that it shows what you say. Numbers do not speak English — they require interpretation. You have previously faced flack for precisely this technocratic and self-professedly “modern” misunderstanding: http://www.slaw.ca/2015/01/08/some-ground-rules-for-a-constructive-abs-discussion/

2. Your point in claiming voting takes 90 seconds was that it is easy and therefore the reason for low turn-out could not be that it is hard. I was addressing this point, not engaging in a technical squabble about whether “actual voting” takes 90 seconds, or how much time a lawyer must spend “all at the same time”. If you read my comment, you will find I did not invoke either of these categories.

Voters in general elections are familiar with candidates as part of their regular news intake. Until the posturing of bencher candidates makes the daily front-pages of newspapers, lawyers will have to go out of their way to inform themselves. In addition, general elections usually feature two to four viable options, of which one is selected, so that a minimal amount of information about each candidate is much easier to obtain.

3. It is illogical to read someone not voting as a rejection of the current way of selecting benchers, for the reasons I have already out-lined and which you have failed to address. It is absurd to read it as a preference for some other arbitrary system that was not on the table.

To conclude, I accept that it is within the bounds of plausibility that you really believe you are driven by good governance. But more likely you are driven by an ideology of good governance, and, like us all, by self-interest, and these have inspired a patterned abuse of logic and evidence to the disservice of your cause.

I agree with JK’s point #2. Suggesting voting took only 90 seconds is the sort of hyperbole I expect from politicians. Finding the e-mail and logging in alone took longer than that, unless someone chose names randomly until they hit 20, in what way would voting take only 90 seconds?

I read through about all the candidates, looked up their vote on TWU on the LSUC site transcript (as a factor, not determinative, I believe LSUC was bound by the SCC decision), if they appeared to be playing games with not disclosing their year of call (i.e. if they were a new/recent call and hid this fact that was a negative), if they were named Groia I voted for them, etc.

For anyone without the time to research all the candidates, not voting might well be a rational choice, trusting in their colleagues who do spend the time to choose adequate benchers.

Not to mention the e-mail going to spam and a regular mailing also, e-mail was from a 3rd party not LSUC making searching for it harder, all the election e-mails from candidates, and so on. I’m all for reducing paper but there are good electronic interfaces and bad, and the whole navigating between who to vote for and the election materials in multiple windows could have been optimized (e.g. links or popups next to each candidates name for their one page?).

I admit that I was attempting to be clever and thus I take responsibility for your misinterpreting my analogy. However, I can’t accept your “clarification” that a bencher election is sui generis or that there is such a thing as legal exceptionalism. Further, I do not see the relevance of the specific functions of the governing body when it comes to my criticism of your argument. Fundamentally, I disagree with your premise.

I interpret your argument as follows:
1.) There are only 2 exclusive options for selecting benchers: voting, or appointing.
1.1.) The voting option exists only in its current form.
2.) If there are any flaws whatsoever with the current voting system, then voting should be abolished and appointing must be adopted.
3.) Voter apathy reflects a flaw in the system.
4.) When voter turnout falls below a certain percentage this can only be explained by voter apathy.
5.) Voter turnout has fallen below this threshold.
6.) Therefore voter apathy.
6.) Therefore there is a flaw in the system.
6.) Therefore voting must be abolished and appointing should be adopted.

First, I do not accept the false dichotomy that there are only 2 solutions. There may be a problem with governance. There may be a problem with the current electoral system. However, between the poles of the system as it currently stands and appointment is a range of reform options that would reflect the fundamental principles of law that the legal profession should uphold, including respect for minority rights and respect for democratic principles. To use another analogy, your argument is akin to “Ken Lay demonstrates that corporate governance is flawed and therefore we should abolish the corporation.” This is an extreme statement that ignores the range of reform options that exist.

Second, there are other explanations for the data that you have presented above. Correlation is not causation, and the hypothesis that voter apathy is the only explanation is a very generous assumption. One potential explanation other than apathy is asymetric knowledge of new calls. Relying on your own graphs, between 1987 and 2015, the population of eligible voters has more than doubled from ~1800 to ~4700: an increase of ~161% by adding ~2900 new potential voters. The corresponding increase, however was only 598 voters during this period, or 20% of the total. While increasing voter apathy may be one explanation, another may be that new calls have insufficient knowledge to participate, resulting in a significant lag. It seems unlikely that there is any one explanation for lower voter turnout, as human motivation is a complex system and the actual cause is likely a combination of inter alia apathy, asymetric knowledge, the crisis of choice, and economics.

Finally, your argument that the tools that may be used to vote are easy to use does not seem relevant. This assumes a false syllogism that the only reasons not to vote are (bad tools xor apathy); not bad tools, therefore apathy. Voting requires first understanding the process, second knowing the issues, third knowing where each candidate (or several candidates) stand on those issues, fourth agreeing with at least one of these candidates, and only then engaging in the voting process. Fixing the final step does not address any of those that come before and merely addresses the low hanging fruit while leaving the more difficult issues aside.

I agree with you that the process is flawed. As a law student, I did not vote, but I watched with great confusion from the sidelines: there is far more wrong with the current system than can be fixed with a web-page.

Over 15,000 people voted and we ended up with Benchers that are a very different bunch from those who went before. People were complaining before about lack of women and racial diversity, for example. Now we have proportions of women and non-white Benchers at least proportional to their representation among lawyers. We have solicitors and public sector lawyers and academics as well as barristers.

So I submit that the process worked. Just about every candidate was impressive, judging from the one-page outlines I read – and I read them all, more or less carefully. I think it was responsible behaviour for lawyers with less time to read them all to delegate, even by implication, the selection to those who wanted to spend the time to understand. It was safe to do so.

There was no reason for a lawyer to feel bound to participate if he or she thought that the result would be acceptable in any event. That is not necessarily apathy, that could be confidence that the Society would be in good hands.

And to the extent that a few issues stood out – e.g. ABS – I think the vote can be taken as a kind of opinion poll on that, with the result not what Mr Kowalski would have liked, but legitimate for all that. I don’t think the result spells doom for ABS, but it certainly spells more scepticism than we were hearing from Benchers before the election.

The voting system was not difficult, but if one wanted to read about the candidates, one had to spend a little time – and the information was very available to do that. It is an unusual election where voters have to choose among so many candidates for so many winners (if one chose to use all 40 votes, which was not required.) So parallels to other participation rates are misleading.